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SCA/4389/2008 29/ 29 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 4389 of 2008
With
SPECIAL
CIVIL APPLICATION No. 1106 of 2008
For
Approval and Signature:
HONOURABLE
MR.JUSTICE H.K.RATHOD
Sd/-
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1
Whether
Reporters of Local Papers may be allowed to see the judgment ?
YES
2
To be
referred to the Reporter or not ? YES
3
Whether
their Lordships wish to see the fair copy of the judgment ?
YES
4
Whether
this case involves a substantial question of law as to the
interpretation of the constitution of India, 1950 or any order
made thereunder ? NO
5
Whether
it is to be circulated to the civil judge ?
NO
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SUNNI
MUSLIM WAKF COMMITTEE - Petitioner(s)
Versus
ABDULGANI
ISHABHAI KACHHOT - Respondent(s)
=========================================================
Appearance
:
MR
PRABHAKAR UPADYAY for
Petitioner(s) : 1,
MR HARSHAL M SHAH for Respondent(s) :
1,
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE H.K.RATHOD
Date
: 17/03/2011
ORAL
JUDGMENT
1. Heard
learned advocates appearing on behalf of respective parties.
2. By
way of filing above petitions, both parties have challenged very
award passed by Labour Court, Ahmedabad in Reference (LCA) No.841 of
1987 dated 22nd June, 2007, where, Labour Court has partly
allowed reference and awarded lump-sum amount of compensation
Rs.40,000/- with cost of Rs.1,000/- in favour of workman in lieu of
relief of back wages of interim period and relief of reinstatement.
3. In
both Special Civil Applications, following order is passed by this
Court (Coram : Justice K.M. Thaker) on 28th August, 2008 :
“Mr.
Sonagra, learned advocate, appears for Mr. Upadyay, learned advocate
for the respondent. In the present petitions, the award dated
22.6.2007 is under challenge. The impugned award is challenged by
both the sides. The workman has preferred petition being special
civil application No.1106 of 2008 and the employer has preferred
petition being special civil application No.4389 of 2008. As per the
case of the workman, he was illegally terminated since 1987 and
hence, since more than 22 years, the respondent workman is out of
employment. For the reasons recorded in the petition, the labour
court has not granted the relief of reinstatement and instead has
considered it appropriate to grant compensation in lieu of the
reinstatement which is quantified at Rs.40,000/- by the labour court.
The employer has raised the
contention that his establishment could not fall within the purview
of section 2(J) of the Industrial Disputes Act, 1947. Since the
employer and the workman have challenged the same award, it is
appropriate to admit the petitions for further consideration hence,
RULE
in both the petitions. As the order passed by the labour court is
clearly in the nature of money decree, the employer committee is
directed to deposit the decreed amount in this court on or before 5th
September, 2008. If the amount is not deposited on or before 5th
September, 2008, then, the same shall carry interest at the rate of
10% from the date of award till the actual date of deposit. Office is
directed to list these petitions for final hearing in the week
beginning from 29th
September, 2008. A copy of this order to be kept in special civil
application No.4389 of 2008.”
4. Thereafter,
another order was passed by this Court (Coram : Justice S.R.
Brahmbhatt) on 24th September, 2008, which is quoted as
under :
“Shri
Upadhyay, learned counsel for the petitioner in Special Civil
Application No. 4389 of 2008 states that, as ordered an amount of
Rs.40,000/- (Rs. Fourty thousand only) has already been deposited
with the Registry of this Court, and he has no objection if the said
amount is permitted to be withdrawn by concerned
workman, who has also filed petition challenging the award being
Special Civil Application No. 1106 of 2008 on an appropriate
undertaking that may be obtained that this withdrawal will be subject
to out come that may be passed in these matters. Accordingly, office
is directed to permit withdrawal of Rs.40,000/- to the workman,
namely Abdulgani Ishabhai Kachhot, petitioner in Special Civil
Application no. 1106 of 2008 by account payee cheque, on proper
identification and on furnishing an appropriate undertaking with a
copy to the other side, that withdrawal of this amount would be
subject to outcome that may be passed in these matters.”
5. It
is necessary to note that this Court has permitted to withdraw of
Rs.40,000/- to workman, but, till date, Rs.40,000/- is not withdrawn
by respondent workman as per submission made by learned advocate
Mr.Shah, because, workman is not having any bank account. He is in
very poor condition and aged 71 years. His son is also not having any
bank account, however,his daughter-in-law viz., Asrafunneesa
Yusufbhai Shaikh is having bank account with State Bank of India,
Vasna Branch, Ahmedabad.Therefore, learned advocate Mr. Shah
submitted that it is very difficult for respondent workman to
withdraw amount as per direction issued by this Court, because,
workman and his son both are not having account in any
bank.But,learned advocate Mr. Shah submitted that
daughter-in-law
by account payee cheque, then, he is prepared to produce receipt from
workman that aforesaid amount is received by workman through his
daughter-in-law. Therefore, request is made by learned advocate Mr.
Shah to direct registry to issue account payee cheque in name of
daughter-in-law – Asrafunneesa Yusufbhai Shaikh who will be
identified by learned advocate Mr. Shah and on condition that learned
advocate Mr. Shah placed on record receipt of workman of aforesaid
amount paid to daughter-in-law. This submission made by Learned
Advocate Mr Shah has not been seriously objected by Learned Advocate
Mr. Upadhyay.
6. Therefore,
it is directed to registry to pay Rs.40,000/-, which is deposited by
employer, by account payee cheque in name of Asrafunneesa Yusufbhai
Shaikh – daughter-in-law. The said cheque shall be handed over
to learned advocate Mr. Shah who is representing workman, so, at
least, amount can be utilised by workman at the end of life for
having treatment for disease of cancer at the age of 71 years.
7. Learned
advocate Mr. Prabhakar Upadhyay appearing on behalf of Sunni Muslim
Wakf Committee – Employer raised two contentions before this
Court challenging award in question passed by Labour Court. He raised
contention that petitioner Committee is not covered by definition of
‘Industry’ under Section 2(j) of Industrial Disputes Act, 1947. He
referred evidence of workman, Page 40 and submitted that even workman
has admitted in his evidence that petitioner Committee being a Public
Trust is maintained on the basis of receiving donation from Muslim
community. He submitted that no production activities or
manufacturing process is carried out by petitioner Committee. He also
submitted that petitioner Committee is not selling any article or any
item and therefore, petitioner Committee is not an ‘Industry’ within
a meaning under Section 2(j) of Industrial Disputes Act, 1947. He
also pointed out Para 10 of written statement, Page 32, that in case,
if Labour Court has come to conclusion that workman’s service has
been terminated without holding any departmental inquiry, then,
opportunity may be given to petitioner Committee to prove misconduct
before Labour Court by leading proper evidence. He submitted that
this specific averments were made in Para 10 of written statement
which is annexed to present petition of employer – Page 29 to 32,
even though, this opportunity has not been given by Labour Court
while adjudicating dispute raised by workman. Therefore, according to
him, Labour Court has committed gross error in granting relief in
favour of respondent workman. He also referred cross examination of
workman from Page 47 to 50 and pointed out that petitioner committee
being a religious Trust, not carried out any activities on profit or
loss basis, therefore, this aspect of cross-examination of workman is
not properly appreciated by Labour Court. In short, his submission is
that Labour Court has committed gross error in granting lump-sum
amount of Rs.40,000/- in favour of workman when petitioner
Committee/Trust is not an ‘Industry’, therefore, Labour Court has no
jurisdiction to grant any relief in favour of workman.
8. In
petition preferred by petitioner Committee, petitioner has annexed
award passed by Labour Court, copy of statement of claim, written
statement, evidence of workman Ex.20 with cross examination Exh.51
and evidence of Mustaqali Kadari, who was witness of petitioner
Committee Ex.26 are annexed at Page 37 to 39 and at Page 40 – an
evidence of workman Ex.51. Except that, no other documents are
produced on record by petitioner Committee.
9. Similarly,
in petition filed by workman, original copy of award passed by Labour
Court along with xerox copy of award has also produced on record by
workman. The workman has also produced judgment of Small Causes Court
No.9 passed in H.R.P. No.1479 of 1987 which has been decided on 5th
April, 1999 where suit filed by petitioner Committee has been
dismissed.
10. The
petitioner Committee being a public registered Trust also filed a
suit before City Civil Court, Ahmedabad, Page 35. A copy of judgment
is produced on record, where, suit filed by plaintiff Committee has
been dismissed against present workman. The aforesaid both suits in
short filed for a purpose of receiving possession of property which
has been occupied by respondent workman. The property which is in
occupation of respondent workman known as ‘Pir Kamal Kabrastan’ which
is situated opposite Nagari Hospital, bearing Survey No.137/A and
137/B which has been described in Para 2 of plaint. Therefore,
petitioner Committee has made sincere efforts for vacating premises
occupied by workman.
11. One
criminal complaint was also filed by Salalkhan against present
respondent workman in Summary Case No.5 of 1987 under Section 447 of
Indian Penal Code, wherein also, workman has been declared acquittal
while giving benefit of doubt and judgment is delivered on 22nd
January, 1990.
12. Against
which, criminal appeal was preferred by Ahemad Patel against
respondent workman before this Court being No.54 of 1991, which has
been dismissed on 25.2.2000 by this Court (Coram : Justice H.H.
Mehta).
13. It
is necessary to note that Labour Court has passed an award in
Reference (LCA) No.841 of 1987 dated 11th April, 2001
which has been challenged by respondent workman before this Court
being Special Civil Application No.6671 of 2003 along with Civil
Application No.10311 of 2006, wherein, this Court has passed
following order in Civil Application No.10311 of 2006 in Special
Civil Application No.6671 of 2003 on 5th September, 2006 :
“Heard
the learned advocate Mrs.Krishna Rawal on behalf of petitioner and
learned advocate G.M.Joshi appearing on behalf of respondent.
Today,
Civil Application No.10311/2006 in main petition filed by original
petitioner-workman with a prayer to fix the matter for final hearing.
Considering the submissions made by both the learned advocates and
after perusing the award passed by Labour Court, Ahmedabad with
consent of both the learned advocates, matter has been taken up for
final hearing, today.
In
the main petition, petitioner has challenged the award passed by
Labour Court, Ahmedabad in Ref.No.841/87, dated 11th
April, 2001. On behalf of respondent before the Labour Court
contention was raised that the respondent is not covered by
definition of Industry under Section 2J of I.D.Act, 1947. Both the
respective parties, produced documentary evidence as well as oral
evidence before the Labour Court. But, Labour Court has examined the
question of industry in light of the definition, which is not in
statue book and on that basis Labour Court has come to conclusion in
Paragraph No.9 that respondent-Trust is not covered by definition of
Section 2J of I.A.Act, 1947.
Labour
Court has committed a gross error in considering the definition of
industry under Section 2J, which is not in statue book being
amended definition, which being a basic
error committed by Labour Court require interference
by this Court, under Article 227 of the Constitution of India.
Therefore,
only on this short ground, award passed by Labour Court in
Ref.No.841/87 dated 11th
April, 2001 is set aside without expressing any opinion on merits. It
is directed to Labour Court, Ahmedabad to decide the Ref.No.841/87
afresh including the question of industry within a period of 6 months
from the date of receiving the copy of the said order. It is open for
both the parties to produce all the relevant documents and to lead
further evidence before the Labour Court and it is directed to Labour
Court, Ahmedabad to give reasonable opportunity to both the
respective parties and to decided the reference within a period of 6
months.
Accordingly,
present petition, is allowed. Rule made absolute. No order as to
costs.
In
view of facts that main matter is allowed by this Court, today,
therefore no order is required to pass in Civil Application.”
14. In
aforesaid order, this Court has set aside award and remanded matter
back to Labour Court concerned for deciding entire reference on
merits. This petition was preferred by workman and on his petition,
award was set aside by this Court. So, aforesaid papers have been
annexed by workman in Special Civil Application No.1106 of 2008.
15. The
contention raised by learned advocate Mr. Upadhyay is that averments
made in Para 10 of written statement Ex.6, no opportunity has been
given by Labour Court to petitioner Committee/Trust for conducting
inquiry before Labour Court. This contention cannot be accepted by
this Court simply on the ground that before Labour Court, no such
submission has been made by advocate of petitioner Trust to permit
petitioner Trust to conduct departmental inquiry before Labour Court.
Merely, raising such plea in written statement is not enough, but, it
should have to be pressed in service before Labour Court at the
relevant time when matter was remanded back to Labour Court by this
Court. In entire award, no such submission was made by petitioner
Trust and therefore, first time, such contention has been raised
before this Court that opportunity was not given to conduct
departmental inquiry against workman cannot be accepted. Apart from
that, even otherwise also, looking to facts which are on record,
workman who reached age of superannuation
in year of 2000, then, question of conducting departmental inquiry
against workman does not arise and having no purpose to permit
employer to hold inquiry after retirement of concerned workman. It is
necessary to note that after remanding matter back to labour court by
this court, only workman was examined vide Exh. 51, at that occasion,
though opportunity was available to petitioner Committee to lead
evidence and prove misconduct of workman but no evidence was led and
no request was made to labour court to permit lead evidence for
proving misconduct against workman then though opportunity was
available to committee, even though, such opportunity was not availed
by committee then such contention cannot be accepted. The request not
made to labour court by committee for permitting to lead evidence for
proving misconduct against workman then to raise contention before
this court first time that no opportunity was given by labour court
cannot be accepted being an after thought.
16. I
have considered submissions made by both learned advocates appearing
on behalf of respective parties. I have scanned all the papers
annexed to these petitions by respective parties. I have also scanned
award passed by Labour Court, Ahmedabad.
17. The
industrial dispute raised by workman against termination was referred
for adjudication on 23rd April, 1987. In support of
industrial dispute, statement of claim was filed by workman Ex.5 and
according to workman, initially, he was working in post of Peon.
Thereafter, he was working as Recovery Clerk and he was joined
petitioner Committee on 3rd May, 1961 as Peon and
thereafter, on 1st April, 1972 appointed as Recovery
Clerk. His salary was Rs.652=50 ps., and his service was terminated
on 7th November, 1986. But, at that occasion, no legal
procedure has been followed and Section 25F is also not followed, no
departmental inquiry was conducted against respondent workman and
according to workman, he was remained in service from 3rd
May, 1961 to 7th November, 1986 continuously, in between,
his service was not terminated by petitioner Committee.
18. Against
statement of claim, written statement was filed by petitioner
Committee vide Ex.6 denying averments made in statement of claim and
raising contention that workman is not covered by definition of
‘Workman’ under Section 2(s) of Industrial Disputes Act, 1947 and
petitioner Committee has not covered by definition of ‘Industry’
under Section 2(j) of Industrial Disputes Act, 1947 and therefore,
Labour Court has no jurisdiction, because, Industrial Disputes Act is
not applicable to petitioner Committee. The reason for termination
was given by petitioner Committee that workman was unauthorisedly
made encroachment upon property of petitioner Committee at ‘Pir Kamal
Kabrastan’ and unauthorisedly made construction which creates hurdle
for Muslim Community those who are coming at Kabrastan, which also
adversely feels bad to Muslim Community and considering these
activities of unauthorised encroachment and construction in the
property of ‘Pir Kamal Kabrastan’ which has been considered to be an
activity against interest of petitioner Committee, therefore, it was
unanimously decided by petitioner Committee to terminate services of
workman and accordingly, services of workman were terminated.
19. Initially,
reference was dismissed, but, this Court has set aside award in
Special Civil Application No.6671 of 2003 and remanded matter back to
Labour Court concerned. Thereafter, intimation has been issued by
Labour Court to both respective parties vide Ex.51, affidavit was
filed by workman and vide Ex.52 and 53, documentary evidence were
produced on record by petitioner Committee and no oral evidence has
been led by petitioner Committee before Labour Court after remanding
matter by this Court. However, it is necessary to note that workman
was initially examined vide Ex.20 on 3rd October, 1994, at
that occasion, he was aged about 50 years and was unemployed.
Thereafter, Ex.26, one legal adviser viz., Mustakali Kadari was
examined on 17th January, 1996. These both evidence were
taken at the time of first award passed by Labour Court, but, after
matter remanding back to Labour Court, only workman was examined vide
Ex.51, but, thereafter, on behalf of petitioner Committee, , no oral
evidence was led before Labour Court. Therefore, in award, Labour
Court has made clear that after remand, no oral evidence was led by
petitioner Committee except to produce two documentary evidence Ex.52
and Ex.53.
20. After
aforesaid evidence, which are on record and considering direction
issued by this Court, Labour Court has considered evidence of workman
and documents which have been produced by petitioner Committee and
considering decision of Apex Court in case of Bangalore Water
Supply & Sewerage Board v. A. Rajappa and Others
reported in AIR 1978 SC 548 and come to
conclusion that various kind of activities have been carried out by
petitioner Committee as per evidence of workman. The respondent
workman was working initially as a Peon and thereafter, as Recovery
Clerk. The respondent workman was not working in Masjid, but, he was
working in office of petitioner Committee situated opposite GPO
Office Salapas Road and income of rent is to be recovered from
Kabrastan, Masjid, Classes which has been maintained by petitioner
Committee and religious work has been maintained from income of rent
as well as having the income of share and interest and amount is
invested by petitioner Committee and whatever rent has been recovered
by respondent workman is required to be deposited by workman in
office of petitioner Committee. The workman has made it clear in his
evidence that land which is occupied by him has not been vacated
though it was directed by petitioner Committee, but, he has not
vacated it, therefore, his service was only on that ground terminated
by petitioner Committee. The workman remained unemployed and he has
studied up to seven standard and he was not gainfully employed.
21. According
to evidence of Mustaqali Kadari, Ex.26, a witness of petitioner
committee also admitted facts that main activities are carried out by
petitioner Committee to maintain Dargah, Masjid and Kabrastan from
income of rent, received from various properties belonging to
petitioner Committee. The petitioner Committee is also running
technical school and other institutions. From that, rent has been
recovered and no notice has been given before terminating service of
workman and no departmental inquiry conducted by petitioner Committee
against respondent workman. The premises which has been occupied by
workman is belonging to petitioner Committee and rent of Rs.5/- has
been deposited by workman in Court. Further evidence was given by
workman vide Ex.51 after remanding matter back to Labour Court by
this Court. According to evidence of workman, he has to recover rent
from various premises belonging to petitioner Committee and more than
25 to 30 employees are working with petitioner Committee those who
are maintaining various properties belonging to petitioner Committee.
In petitioner Committee, eight to ten Watchmen are there and various
kind of Classes are running and also engaging Instructor in various
Faculties including technical staff and Provident Fund also deducted
from salaries of employees and gratuity amount is also made available
to employees those who are working with petitioner Committee. The
petitioner is a Public Trust registered under provisions of Bombay
Public Trust Act. The petitioner Trust is receiving various kind of
donation from various persons.
22. The
petitioner Committee is having properties at Gandhi Road, Jama Masjid
and all shops which are surrounding to Jama Masjid near Manek Chowk
belonging to petitioner Trust. Not only that but various shops which
are situated in Rajano Hajiro and Ranino Hajiro are also belonging to
petitioner Committee and property of shops in Manek Chowk, Vasan
Bazar, Karanj Khas Bajar, Near Masjid and also having main office at
Salapas Road and various buildings and shops are also at Shahibaug
having large Kabrastan at Ishanpur and new flats near Kabrastan at
Ishanpur and also having large Kabrastan at Gomtipur and lands, shops
and buildings surrounding to Kabrastan at Gomtipur. The petitioner
Committee runs computer classes, mobile repairing classes, ITI
classes, etc., and collects high fees and hostels for boys and
collects fees from students. The petitioner Committee is having these
all sources of income, which suggest that petitioner Committee is
doing commercial activities.
23. It
is not a case of petitioner Committee that except spiritual work, no
other activities are carried out by petitioner Committee. It is
necessary to note that Ex.51, evidence of workman giving aforesaid
all details not challenged in cross-examination by petitioner
Committee and subsequent to evidence after remand, no oral evidence
was led by petitioner Committee except to produce two documents Ex.52
and Ex.53. Therefore, considering evidence of workman not challenged
by other side, Labour Court has come to conclusion that various
activities are carried out by petitioner Committee means systematic
activities have been carried out with help of relationship as
’employer – employee’ and service rendered to mankind for
satisfying human needs and requirement of public at large satisfied
the ingredients of triple tests laid down by Apex Court in case of
Bangalore Water Supply (supra). Therefore, this being a finding of
fact examined and decided by Labour Court after remanding matter to
Labour Court, therefore, contentions raised by learned advocate Mr.
Upadhyay cannot be accepted, because, there was no positive evidence
produced by petitioner Committee to the effect that these activities
are not carried out by petitioner Committee means there is no denial
to evidence of workman Ex.51.
24. The
service of workman was terminated on 7th November, 1986
and he was terminated by President Jabbarhusain Kadari for misconduct
committed by him, even no written order was served to workman. No
notice or notice pay as well as compensation was given to workman and
his service was terminated on 7th November, 1986. On 8th
November, 1986, it was a Saturday, even though, workman had collected
and recovered rent and deposited in office of petitioner Committee.
On 9th November, 1986, it was a Sunday and on 10th
November, 1986, total amount has been given by workman to petitioner
Committee. At that time, Secretary was Abdulkhan Chauhan and on that
day, Mr. Chauhan made it clear orally to workman that his service was
terminated w.e.f. 7th November, 1986 and accordingly,
public notice was issued in daily newspaper that now, it is not
required to report for duty by workman. During pendency of reference,
workman was taken back in service, but, with ulterior motive and
victimise him, again, his service was terminated by petitioner
Committee while giving written order on 30th August, 1997.
The date of birth of workman is 8th December, 1940,
therefore, his date of superannuation was 8th December,
2000. No doubt, in petitioner Committee, retirement age is not fixed,
however, considering termination and unemployment of workman and
having cancer of lungs and his wife was doing household work and
inspite of number of efforts made by workman, he was not able to get
any employment and he was totally remained unemployed.
25. In
cross-examination also, workman has given evidence that inspite of
sincere efforts made by him, he was not able to get any employment
and he remained unemployed and his monthly last salary was Rs.652=50
ps. The evidence of witness of petitioner Committee Mr. Kadari, in
terms, before Labour Court stated that due to unauthorised
encroachment made in premises and construction was made by respondent
workman in Kabrastan, opposite Nagari Hospital, services of workman
was terminated by petitioner Committee. Undisputedly, no departmental
inquiry was conducted before terminating service of workman and this
evidence has been considered by Labour Court and come to conclusion
that service of workman was illegally terminated by petitioner
Committee while giving conclusion that petitioner Committee is
covered by definition of Section 2(j) of Industrial Disputes Act,
1947. The Labour Court has appreciated oral evidence led before him
as well as also considered documentary evidence and also considered
undisputed facts that before terminating service of workman, no
show-cause notice was served to him. No departmental inquiry was
conducted and come to conclusion that prima facie, order of
termination is based on allegation/misconduct as alleged by
petitioner Committee/Establishment and it was a punishment imposed by
petitioner Committee upon workman. Before that, no opportunity was at
all given by petitioner Committee. Therefore, in absence of
conducting departmental inquiry, no punishment can be imposed against
workman which violates basic principles of natural justice. The
petitioner Committee also admitted in Para 10 of written statement at
Ex.6 that no departmental inquiry was conducted against workman.
26. The
Labour Court has considered that more than 20 years have been passed
for adjudication of industrial dispute which was referred in year of
1987 and looking to date of birth of workman 8th
December, 1940, who was reached age of 60 years in year of 2000,
therefore, considering bitterness / not having a good terms between
employer and employee, therefore, not granted relief of reinstatement
and considering age of retirement reached by workman, a lump-sum
amount has been awarded. The Labour Court has committed gross error
in coming to conclusion only on the presumption that evidence of
workman cannot be believed that he was totally unemployed and his son
was earning and maintaining family. On what basis, evidence of
workman has not been believed. For that, no evidence has been
produced by petitioner Committee before Labour Court. Such
presumption is contrary to record drawn by Labour Court. The Labour
Court has also committed gross error drawing adverse inference
against workman which is contrary to evidence of workman that during
interim period, workman must have earned something and maintained
family. The Labour Court has considered that provident fund amount is
not available to workman, but, amount of gratuity and retrenchment
compensation are available to workman according to law and
considering back wages of interim period, in all, only Rs.40,000/-
has been awarded by Labour Court being a lump-sum compensation in
favour of workman.
27. I
have considered evidence of workman Ex.51, against which, no oral
evidence was led by petitioner Committee/Trust disproving facts
stated by workman in his evidence. The evidence of workman suggests
various properties belonging to petitioner Committee situated in
various areas of Ahmedabad City and outside City Areas receiving rent
amount, maintaining different kind of Classes, giving training to
such students and engaging more than 35 employees including
Instructor, Secretary, Clerks, Peons, Watchmen, etc., and maintaining
Trust after receiving aforesaid income from various sources which
includes commercial transactions and activities carried out by
petitioner Trust as per deposition given by workman. The petitioner
Committee/Trust is also investing amount in Share, FDR and receiving
interest and also receiving fees from different technical classes run
and maintain by petitioner from students. These are the income
received by petitioner and it was not a only function of spiritual
activities, but, on the contrary, main activities of petitioner
Committee is commercial activities carried out with help of
relationship between employer and employee which is considered to be
a systematic joint efforts of employer and employees made to satisfy
human wants. This aspect has been recently considered by Division
Bench of Madras High Court in case of Thilagavathi S. v.
Presiding Officer, Labour Court, Madurai and Another report
in 2010-I-LLJ 101 (Mad.).
The relevant discussion is made in Para 8 to 12 which are quoted as
under :
“8. The
evidence placed on record before the Labour Court discloses that the
second respondent society is being used as an observation home for
children and that the Government is providing aid to this institution
and that apart the expenses are met out by getting donations. The
society is giving vocational training to the children for self-help
jobs and also in gardening and as per the bye-laws of the Management,
properly allocated works are being carried out as per the rules and
regulations in accordance with the duty hours and further its
accounts are being audited every year. It is evident from the above
that there are systematic activities in the second respondent Society
and there are joint efforts by the employer and employees and
further, it is being carried out for human necessities.
9. In
Bangalore Water Supply and Sewerage Board v. A. Rajappa and Others
(supra) case, the Hon’ble Supreme Court held that Bombay Pinjrapoles
in the said case was an ‘industry’,
justifying the conclusion with a different process of reasoning, that
Pinjrapoles are ‘industry’, not because they have commercial motives,
but, because despite their companssionate objectives, they share
business like orientation and operation.
10. The
Hon’ble Supreme Court further held that two categories of charitable
institutions would fall within the definition of ‘industry’ and they
are :
(1) where
the enterprises, like any other, yields profits but they are siphoned
off for altruistic objects.
(2) where
the institution makes no profit but hires the services of employees
as in other like businesses but the goods and services, which are the
output, are made available, at low or no cost to the indigent needy
who are priced out of the market.
11. The
second one, as stated supra,
could be applied to the present case, for the reason, the manner in
which the activity in question is organized or even arranged in the
second Respondent society is with the cooperation between the
employer and the employee for its success and the object is to render
material service to the community, and they are the tests
which identifies the second respondent as
an industry.
12. It
is pertinent to point that merely because the society is run with the
aid of the Government, it will not be exempted from the definition of
industry and the said view gains credence from the decision Workmen
of Indian Standards Institution v. Management of Indian Standards
Institution, AIR 1976 SC 145 : (1975) 2 SCC 847 : 1960-I-LLJ-33. In
the said case, the majority of the Three udges Bench relied more upon
the State of Bombay v. Hospital Mazdoor Sabha (supra) case, than on
the Safdarijung Hospital v. Kuldip Singh Sethi (supra) case and
ultimately held that the Indian Standards Institution which was run
by the Government of India is an industry. This was also pointed out
in Bangalore Water Supply & Sewerage Board v. A. Rajappa and
Others (supra) case by the Hon’ble Supreme Court. By applying the
said principles stated supra, we have no difficulty to hold that the
second respondent society is an ‘industry’ within the meaning of
Industrial Disputes Act.”
28. In
view of aforesaid discussion and observations made by Division Bench
of Madras High Court and considering evidence which are on record,
contentions raised by learned advocate Mr. Prabhakar Upadhyay
cannot be accepted, hence, rejected. Therefore,
petition preferred by petitioner Committee being Special Civil
Application No.4389 of 2008 is required to be dismissed, because,
there is no substance in petition, hence, dismissed.
29. Now,
I am considering petition filed by workman being Special Civil
Application No.1106 of 2008. The question is whether amount of
compensation which has been awarded by Labour Court can be considered
to be a reasonable, adequate and proper or not ?
30. The
total service rendered by workman from date of joining 3rd
May, 1961 and his service was terminated on 7th
November, 1986 more than 26 years. Considering age of retirement 60
years, then, workman must have to be remained in service upto period
of 2000, therefore, Labour Court has not property applied its mind
while fixing compensation in lieu of reinstatement and back wages of
interim period. Once order of termination found to be illegal,
contrary to principles of natural justice and violates provisions of
Section 25F of Industrial Disputes Act, 1947, then, such order of
termination is ab initio void and workman is deemed to be in service
for all purposes as decided by Apex Court in case of Mohan
Lal v. Management of M/s. Bharat Electronics Ltd.
reported in AIR 1981 SC 1253.
The gainful employment has not been proved by petitioner Trust and
unemployment has been proved by workman, therefore, workman is
entitled a relief of back wages of interim period from date of
termination to date of reaching age of superannuation. Therefore,
considering date of termination 7th
November, 1986 to 2000, workman is entitled back wages of 14 years
period. The workman is also entitled benefit of gratuity,
retrenchment compensation considering 14 years interim period, in
all, amount of Rs.40,000/- is considered to be a very meager amount
awarded by Labour Court which requires to be enhanced by this Court,
because, Rs.40,000/- is awarded without application of mind and
ignoring relevant factors for determining such compensation in light
of background that workman who was remained out of job for more than
14 years and his service was illegally terminated and gainful
employment is not proved by petitioner Committee/Trust, therefore,
according to my opinion, considering legal retrenchment, then,
workman is entitled 15 days salary for retrenchment compensation and
15 days wages for gratuity amount. In all, it comes to one month
salary for one year period and for date of joining 3rd
May, 1961 to 2000, total period comes to 39 years and therefore,
workman is entitled a salary of 39 months considering his salary
Rs.652=50 ps., then, it comes to Rs.25448/-. The workman is also
entitled amount of back wages for interim period from date of
termination to date of reaching age of superannuation about 14 years.
According to my opinion, considering from both sides and workman
remained unemployed throughout and gainful employment is not proved
by employer, therefore, workman is entitled 75% back wages of interim
period for 14 years who was remained out of job, considering last
drawn monthly salary of, it comes to Rs.82,152/-, therefore, total
amount comes to Rs.1,07,600/-. Out of that amount, Rs.40,000/- which
has been awarded by Labour Court being a lump-sum amount is required
to be deducted, then, net amount comes to Rs.67,600/-. Therefore,
according to my opinion, on the basis of aforesaid calculation which
is worked out by this Court to determine a reasonable compensation
for workman who is suffering from serious ailment i.e. cancer of
lungs at last stage, aged about more than 71
years and not having any sufficient means or adequate facility even
to have medical treatment for such a serious disease,
31. Therefore,
considering entire matter as it is as discussed above by this Court,
workman – Abdulgani Ishabhai Kachhot is entitled additional
amount of compensation Rs.67,600/- after deducting Rs.40,000/- as
awarded by Labour Court, Ahmedabad. Accordingly, petitioner –
Sunni Muslim Wakf Committee has to pay further additional amount of
compensation Rs.67,600/-, over and above Rs.40,000/- awarded by
Labour Court, to respondent workman – Abdulgani Ishabhai Kachhot.
32. Accordingly,
award passed by Labour Court in Reference (LCA) NO.841 of 1987, Ex.72
dated 22nd
June, 2007 is hereby modified to the effect that workman is entitled
to get total compensation of Rs.1,07,600/- and after deducting
Rs.40,000/- as awarded by Labour Court,
rest of amount comes to Rs.67,600/-, which is required
to be paid by petitioner Committee to respondent workman with cost of
Rs.10,000/- imposed upon petitioner Committee.
33. Accordingly,
petition preferred by workman being Special Civil Application No.1106
of 2008 is partly allowed and rule is made absolute to aforesaid
extent.
34. In
result, it is directed to petitioner – Sunni Muslim Wakf
Committee to deposit Rs.67,600/- along with cost Rs.10,000/- before
registry of this Court within a period of one month from today,
without fail.
35. After
realising said amount which deposited by petitioner Committee,
registry is directed to issue an account payee cheque of said amount
in name of daughter-in-law – Asrafunneesa Yusufbhai Shaikh on behalf
of respondent workman and hand over said cheque to learned advocate
Mr. Shah who is representing respondent workman in these matters
immediately. Learned advocate Mr. Shah will acknowledge same on
behalf of respondent workman and thereafter, he will produce receipt
of respondent workman that respondent workman has received said
amount through his daughter-in-law.
36. Accordingly,
petition preferred by petitioner – Committee is hereby
dismissed and petition
preferred by respondent workman is hereby partly
allowed to the aforesaid extent with cost of Rs.10,000/-.
Sd/-
[H.K.
RATHOD, J.]
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